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Review pages 109–110 of Essentials of Health Policy and Law as well as the following legislation:

Examination and Treatment for Emergency Medical Conditions and Women in Labor

You are a consultant specializing in policy analysis. Based on theExamination and Treatment for Emergency Medical Conditions and Women in Labor legislation, as well as the situation that follows, you will complete a policy analysis with 3–5 options for your client, Congresswoman Moody, to consider.

Congresswoman Moody represents a state that borders Mexico. She is up for re election next year, and she will seek another term in office.

There are many undocumented workers that reside in her district. Congresswoman Moody is vocal about the need to provide health care to all that need it, but she also believes in fiscal restraint and does not support bail-outs for private facilities. She is well aware that her state’s Medicaid budget is almost exhausted for this year, and the state’s unemployment rate remains stubbornly high.

Apart from the voters, other affected constituents include three private regional medical centers trauma units that receive referrals from five or more small facilities that have emergency departments with lesser trauma status. Also, the largest health care corporation that owns two of the three medical centers in her catchment area, and which supported her in her last bid for election with campaign funds at the allowable limit, is threatening to refuse Medicare and Medicaid patients to ensure survival in the bad economy. An increase in unfunded mandates for urgent care may push this corporation into private payer only, and Congresswoman Moody is aware that there are enough affluent families in the area to support two facilities providing only designer medicine and concierge services.

All options must:

· Be within the power of Congresswoman Moody to do

· Be consistent with Congresswoman Moody’s values, and

· Address the issue identified in the problem statement

You will:

1. Identify 3–5 options for Congresswoman Moody’s consideration

2. Identify criteria that will be used to evaluate the options

3. Identify pros and cons for each option

4. Use a side-by-side table (MS® Excel® would be appropriate for this) to assist in analyzing the options.

Submitting Your Assignment

Prepare your written Assignment in a Word and/or Excel document and save it in a location and with a name you will remember, using the following naming convention: username-assignment-unit#.doc.

Page number 109

In terms of national constitutions, a 2004 survey reported that some two-thirds of constitutions worldwide address health or health care, and that almost all of these do so in universal terms, rather than being limited to certain populations. 13  For example, consider the health-related constitutional aspects of four politically and culturally diverse countries—Italy, the Netherlands, South Africa, and Poland—that have some type of “right to health”: Italy’s Constitution guarantees a right to health; under the Dutch Constitution, the government is mandated “to promote the health of the population”; the Constitution of South Africa imposes on government the obligation to provide access to health services; and under Polish constitutional law, citizens are guaranteed “the right to health protection” and access to publicly financed healthcare services. 14

Of course, including language respecting health rights in a legal document—even one as profound as a national constitution—does not guarantee that the right will be recognized or enforced. As in the United States, multiple factors might lead a foreign court or other tribunal to construe rights-creating language narrowly or to refuse to force implementation of what is properly considered a right. Examples of these factors include the relative strength of a country’s judicial branch vis-a-vis other branches in its national governance structure and a foreign court’s view of its country’s ability to provide services and benefits inherent in the health right.

BOX 6-2 Discussion Question

Depending on one’s personal experience in obtaining health care, or one’s view of the role of physicians in society, of law as a tool for social change, of the scope of medical ethics, or of the United States’ place in the broader global community, the no-duty principle might seem appropriate, irresponsible, or downright wrong. Imagine you are traveling in a country where socialized medicine is the legal norm, and your discussion with a citizen of that country turns to the topic of your countries’ respective health systems. When asked, how will you account for the fact that health care is far from being a fundamental right rooted in American law?

108109

INDIVIDUAL RIGHTS AND THE HEALTHCARE SYSTEM

The “global perspective” you just read was brief for two reasons. First, a full treatment of international and foreign health rights is well beyond the scope of this chapter, and second, historically speaking, international law has played a limited role in influencing this nation’s domestic legal principles. As one author commented, “Historically the United States has been uniquely averse to accepting international human rights standards and conforming national laws to meet them.” 15 (p1156) This fact is no less true in the area of health rights than in any other major area of law. As described earlier in this chapter, universal rights to health care are virtually nonexistent in the United States, even though this stance renders it almost solitary among industrialized nations of the world.

This is not to say that this country has not contemplated health care as a universal, basic right. For instance, in 1952, a presidential commission stated that “access to the means for attainment and preservation of health is a basic human right.” 16 (p4) Medicaid and Medicare were the fruits of a nationwide debate about universal healthcare coverage. And during the 1960s and 1970s, the claim that health care was not a matter of privilege, but rather of right, was “so widely acknowledged as almost to be uncontroversial.” 17 (p389)Nor is it to say that certain populations do not enjoy healthcare rights beyond those of the general public. Prisoners and others under the control of state governments have a right to minimal health care, 18  some state constitutions expressly recognize a right to health or healthcare benefits (for example, Montana includes an affirmative right to health in its constitution’s section on inalienable rights), and individuals covered by Medicaid have unique legal entitlements. Finally, it would be inaccurate in describing healthcare rights to only cover rights to obtain health care in the first instance, because many important healthcare rights attach to individuals once they manage to gain access to needed healthcare services.

The remainder of this section describes more fully the various types of individual rights associated with the healthcare system. We categorize these rights as follows:

· 1. Rights related to receiving services explicitly provided under healthcare, health financing, or health insurance laws; for example, the Examination and Treatment for Emergency Medical Conditions and Women in Labor Act, Medicaid, and the Affordable Care Act.

· 2. Rights concerning freedom of choice and freedom from government interference when making healthcare decisions; for example, choosing to have an abortion.

· 3. The right to be free from unlawful discrimination when accessing or receiving health care; for example, Title VI of the federal Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin by entities that receive federal funding. 12 (p12), 19

Rights Under Healthcare and Health Financing Laws

We begin this discussion of rights-creating health laws with the Examination and Treatment for Emergency Medical Conditions and Women in Labor Act (also referred to as EMTALA, which is the acronym for the law’s original name—the Emergency Medical Treatment and Active Labor Act—or, for reasons soon to become clear, the “patient anti-dumping statute”). We then briefly discuss the federal Medicaid program in a rights-creating context and wrap up this section with a brief discussion of the ACA.

Page number 110

Rights Under Health Care Laws: Examination and Treatment for Emergency Medical Conditions and Women in Labor Act

Because EMTALA represents the only truly universal legal right to health care in this country—the right to access emergency hospital services—it is often described as one of the building blocks of health rights. EMTALA was enacted by Congress in 1986 to prevent the practice of “patient dumping”—that is, the turning away of poor or uninsured persons in need of hospital care. Patient dumping was a common strategy among private hospitals aiming to shield themselves from the potentially uncompensated costs associated with treating poor and/or uninsured patients. By refusing to treat these individuals and instead “dumping” them on public hospitals, private institutions were effectively limiting their patients to those whose treatment costs would likely be covered out-of-pocket or by insurers. Note that the no-duty principle made this type of strategy possible.

EMTALA was a conscious effort on the part of elected federal officials to chip away at the no-duty principle: By creating legally enforceable rights to emergency hospital care for all individuals regardless of their income or health insurance status, Congress created a corresponding legal duty of care on the part of hospitals. At its core, EMTALA includes two related duties, which technically attach only to hospitals that participate in the Medicare program (but then again, nearly every hospital in the country participates). The first duty requires covered hospitals to provide an “appropriate” screening examination to all individuals who present at a hospital’s emergency department seeking care for an “emergency medical condition.” Under the law, an appropriate medical 109110screening is one that is nondiscriminatory and that adheres to a hospital’s established emergency care guidelines. EMTALA defines an emergency medical condition as a

· medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part; or with respect to a pregnant woman who is having contractions, that there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child. 20